Wednesday, June 20, 2007

Yushchenko no longer acting as a head of state but a leader of a political party has today began his campaign.

In the above article Yushchenko states

“Now some separate groups in the parliament try to execute agreements and prolong agony condition with political games. They break promises and damage the interests of our country,”

Yushchenko had given an undertaking to abide by the decision of Ukraine's Constitutional Court yet when it became apparent that the court was about to rule his previous decrees unconstitutional he acted to prevent the court form ruling on the legality of his actions.Yushchenko in trying justifying his unconstitutional dismissal of Ukraine's democratically elected parliament stated

“If democratic values do not have very important sense for political leaders and state institutions are incapable for work, the electorate will be the only possibility to defense the democracy,”

This criticism very much can and should also apply to Yushchenko himself. Yushchenko has acted to prevent Ukraine's democratic institutions from functioning on more then one occasion. Whilst he defers to the will of the people voting in election he fails to mention that he himself is unwilling to face the people of Ukraine by resigning and seeking re-election and renewal of his own mandate in fresh presidential elections, as if if was beyond reproach or without fault.

Yushchenko also supposes that the parliamentary coalition and government have started an attack on democratic values.

“As a president I cannot ignore open attack on our constitutional principles. I am talking about constant attempts of governmental coalition to break constitutional balance. I am talking about corruption in changing of political forces in the parliament against the electorate will. The Constitutional Court lost its ability to execute its constitutional responsibilities due to terrorizing and corruption activity"

Ukraine's president, who gave an oath to uphold Ukraine's Constitution and laws of Ukraine, has and continues to act contrary to the provisions of Ukraine's Constitution himself. His attack on the Constitutional Court, in order to prevent the court from justly ruling on the legality of his decrees, seriously undermines public confidence in the ability of the office of the president to act in the best interest of Ukraine and not just the political interest of his party.

Ukraine's Constitution (Article 103) prohibits the president maintaining a secondary representative role or membership of a political party.

Does the ends justify the means?

As long as the president continues to ride roughshod over Ukraine's laws and democratic institutions the principles of democracy will never be realised.

Two wrongs do not make a right and contrary to the misleading statements made by the president his own actions are undemocratic. A case of "do as he says and not what he does"

The European Union must not sit back and allow this attack on Ukraine's democratic institutions to go unchallenged. It undermines both Ukraine's democratic development and the reputation of the EU as a institution that supports and promotes true democratic values. The longer the Constitutional Court is denied the opportunity to rule on the validity of the president's actions the worst it gets.

The European Union must not be seen to be selectively turning a blind eye to obvious breaches of constitutionality, be it by the president or members of a parliamentary body of one state.

The Eurpean Union nad Pace in particular, in the absence of a functioning Constitutional Court, should request the independent Venice Commission to make an independent assessment and report on the legality of the president's actions. Failure to do otherwise sets a very dangerous precedent that only undermines the EU's standing, International credibility and reputation as being a defender of democratic rule of law.

News in review

Parliamentary Assembly Council of Europe (PACE) Explanatory Report calls on Ukraine to adopt a Full Parliamentary System in line with other European States

"It would be better for the country to switch to a full parliamentary system with proper checks and balances and guarantees of parliamentary opposition and competition."

Constitutional Court challenge

The authority of the President to dismiss Ukraine's parliament has been challenged in Ukraine's Constitutional Court amidst concern that the President's actions are unconstitutional in that he has exceeded his authority to dismiss Ukraine's parliament.

On April 19 the Parliamentary Assembly of the Council of Europe passed a resolution in consideration of a report titled Functioning of democratic institutions in Ukraine. (Items 13 and 14) stated:

“ The Assembly deplores the fact that the judicial system of Ukraine has been systematically misused by other branches of power and that top officials do not execute the courts’ decisions, which is a sign of erosion of this crucial democratic institution. An independent and impartial judiciary is a precondition for the existence of a democratic society governed by the rule of law. Hence the urgent necessity to carry out comprehensive judicial reform, including through amendments to the constitution.

The Assembly reiterates that the authority of the sole body responsible for constitutional justice – the Constitutional Court of Ukraine – should be guaranteed and respected. Any form of pressure on the judges is intolerable and should be investigated and criminally prosecuted. On the other hand, it is regrettable that in the eight months of its new full composition, the Constitutional Court has failed to produce judgments, thus failing to fulfil its constitutional role and to contribute to resolving the crisis in its earlier stages, which undermines the credibility of the court.

There is an urgent need for all pending judgments, and in particular the judgment concerning the constitutionality of the Presidential Decree of 2 April 2007, to be delivered. If delivered, the latter should be accepted as binding by all sides.
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The associated explanatory report under the sub-heading of Pressure on the courts expressed concern that "Several local courts have made decisions to suspend the Presidential Decree only to then withdraw them, allegedly under pressure from the presidential secretariat." (item 67)

In emphasis the report (item 68) stated

"This is a worrying tendency of legal nihilism that should not be tolerated. It is as clear as day that in a state governed by the rule of law judicial mistakes should be corrected through appeal procedures and not through threats or disciplinary sanctions ”

On April 30, on the eve of the Constitutional Court's ruling on the legality of the president's decree dismissing Ukraine's parliament, President Yushchenko, in defiance of the PACE resolution of April 19 intervened in the operation of Ukraine's Constitutional Court by summarily dismissing two Constitutional Court Judges, Syuzanna Stanik and Valeriy Pshenychnyy, for allegations of "oath treason." His move was later overturned by the Constitutional Court and the judges were returned by a temporary restraining order issued by the court.

Following the president's intervention the Constitutional Court still has not ruled on the question of legality of the president's actions.

Stepan Havrsh, the President's appointee to the Constitutional Court, in prejudgment of the courts decision and without authorization from the Court itself, commented in an interview published on July 24

“ I cannot imagine myself as the Constitutional Court in condition in which three political leaders signed a political/legal agreement on holding early elections, which also stipulates the constitutional basis for holding the elections... How the court can agree to consider such a petition under such conditions.”

Olexander Lavrynovych, Ukrainian Minister for Justice, in an interview published on Aug 3 is quoted as saying

“ According to the standards of the Constitution and the laws of Ukraine, these elections should have been recognized invalid already today. But we understand that we speak about the State and about what will happen further in this country. As we've understood, political agreements substitute for the law, ... The situation has been led to the limit, where there are no possibilities to follow all legal norms.